NYPD Complaint Board Can Interview Deputy Inspector: Judge

A state judge denied an attempt by a high-ranking New York Police Department official to avoid being interviewed by the Civilian Complaint Review Board as part of its investigation into his pepper spraying Occupy Wall Street protesters two years ago.

NYPD Deputy Inspector Anthony Bologna filed a motion seeking an injunction to prevent him from being forced to submit to questioning by the independent CCRB, which is tasked with investigating complaints alleging police misconduct.

Jim Kiernan

Deputy Inspector Anthony Bologna in Union Square on Sept. 24, 2011.

But that motion was turned down Wednesday by Manhattan Supreme Court Judge Joan Lobis. In her ruling, she wrote that Mr. Bologna “failed to establish a ‘clear legal right’ to preclude the CCRB from interviewing” him. Mr. Bologna was scheduled to be interviewed by the CCRB in August, but that was postponed after he lodged this appeal.

“We are pleased with the decision,” CCRB Chairman Daniel Chu said. “We will be scheduling Deputy Inspector Bologna for an interview as soon as possible.”

On September 24, 2011, Mr. Bologna pepper sprayed a group of protesters who were held behind netting by police officers in Union Square. The scene was recorded by bystanders, and those videos went viral on the Internet and were viewed by millions of people. Over the next several days, the CCRB received 467 complaints from civilians, mostly from those who watched the incident on the Internet or television news.

Mr. Bologna’s attorney, Louis La Pietra, does not deny Mr. Bologna used pepper spray that day and said that “his actions were consistent with NYPD training and policy.” Mr. Bologna chose to not challenge the findings of the NYPD’s Internal Affairs Bureau that ordered he lose 10 days of vacation for violating the department’s guidelines for using pepper spray “to get it behind him,” Mr. La Pietra added.

This past April, the Manhattan district attorney’s office chose not to bring criminal charges after conducting an investigation where Mr. Bologna voluntarily answered questions, Mr. La Pietra said, “potentially at his own peril.”

Mr. La Pietra said the reason they challenged the CCRB’s attempt to interview him was because “we are of the position that those questions have already been asked and answered” in the IAB and district attorney investigations.

The CCRB has the authority only to recommend punishment to the police commissioner in the cases where they substantiate charges leveled at officers. Mr. La Pietra said Mr. Bologna has already been disciplined by Police Commissioner Raymond Kelly for the incident.

“The outcome has already been decided,” Mr. La Pietra said. “He’s already been disciplined by the NYPD so this recommendation, whatever it may be, is not going to amount to anything.”

A spokeswoman for the CCRB declined to comment because the investigation is still pending.

However, Christopher Dunn, associate legal director for the New York Civil Liberties Union, said, “this ruling opens the door to a new police commissioner imposing a much harsher penalty.”

Under an agreement reached with the NYPD in April 2012, the CCRB lawyers were given the power to prosecute police abuse cases where their agency recommended that “charges and specifications” be brought against the officer. In the past, officers’ departmental disciplinary trials had been prosecuted by lawyers assigned to a unit within the NYPD.

Under the agreement, the police commissioner retains the power to impose discipline in these cases. But if the judge hearing the disciplinary trial recommends that Mr. Bologna receive a stiffer punishment, a new police commissioner could increase disciplinary measures against Mr. Bologna to send “a clear message that police misconduct will not be tolerated by the de Blasio administration,” Mr. Dunn said.

Mr. La Pietra said he believes the NYPD is bound by the discipline already handed down in Mr. Bologna’s case. The deputy inspector also has the right under the law to appeal any added discipline, the attorney said.